Ethical Considerations in Medical Malpractice When Client Testimony and the Records Conflict
Mark A. Abramson and Kevin F. Dugan
The attorney-client privilege is “the oldest of the privileges for confidential communication known to the common law.” “Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”
Like all things, however, the attorney-client privilege is susceptible to abuse. While it can be used to foster trust and protect a client’s legitimate interests, it can also be invoked as a shield to deflect inquiries into virtually any area that the attorney wishes to keep hidden. It may be affirmatively asserted in order to obscure wrongdoing on the part of the client, or it may be passively relied upon by an attorney who allows a client to commit perjury without correction.
Many practitioners have likely encountered many instances of this conduct in their practice. As an example, consider a defendant physician who submits answers to interrogatories that completely contradict information documented in the patient’s chart at the time of care. The new information contained in the answers naturally absolves the defendant of any liability. When asked whether the defendant retained a copy of the answers that he personally wrote, his attorney objects on the basis such inquiry encroaches on the area of attorney-client communication and instructs him not to answer.
As another example, consider a defendant physician during deposition claiming to have performed and/or recommended numerous procedures during the plaintiff’s examination, none of which are reflected in the medical chart. In addition, despite the examination taking place years prior to the deposition, the defendant is conveniently able to recall new, specific information that, again, is not documented anywhere but is significantly favorable to his position.
The largely unassailable protection offered by the privilege gives counsel little reason to fear reprisal for their actions and the actions of their clients. An exception to the privilege does exist, however, to combat this ignoble behavior: the so-called crime-fraud exception to the attorney-client privilege. Although adopted by and incorporated in the New Hampshire Rules of Evidence, the New Hampshire Supreme Court has not yet addressed its application. Because we believe this may be a useful but under-used tool in situations where fraud is suspected, the following review of the crime-fraud exception is therefore intended to assist practitioners and trial judges in the use of the exception to prevent fraud on opposing counsel and the Court.
II. The Crime-Fraud Exception to the Attorney-Client Privilege
The crime-fraud exception was first articulated in Clark v. United States, where the United States Supreme Court stated that the attorney-client privilege “takes flight if the [attorney-client] relationship is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.”  The Court emphasized that the loss of the privilege does not hinge upon a showing that the client and attorney conspired together; “[t]he attorney may be innocent, and still the guilty client must let the truth come out.” Thus, the focus of the inquiry must be on the actions of the client, not unilateral wrongdoing by counsel.
With respect to the quantum of proof required to pierce the privilege, the Clark Court stated that a mere allegation fraud alone was not enough: “To drive the privilege away, there must be ‘something to give colour to the charge;’ there must be ‘prima facie evidence that it has some foundation in fact.’” The Supreme Court later acknowledged the lack of clarity in this standard in United States v. Zolin, but did not clarify its position, stating only the “quantum of proof needed to establish admissibility was then, and remains, subject to question.” What the Zolin Court did do was address the following questions: (1) What type of evidence may be used to ultimately establish application of the crime-fraud exception?; (2) Can a judge perform in camera review to initially determine if the exception applies?; and (3) What type of evidence can the party seeking application of the exception submit to meet the threshold showing required for in camera review?
The Zolin Court first concluded that “a complete prohibition against opponents’ use of in camera review to establish the applicability of the crime-fraud exception is inconsistent with the policies underlying the privilege.” At the same time, it noted that a blanket rule allowing in camera review would place the policy underlying the privilege at undue risk, as well as place an undue burden on the courts. Therefore, the Court determined that some threshold showing would be required before an in camera review would be performed.
In crafting the threshold showing, the Court noted that because in camera review is by nature a smaller intrusion upon the confidentiality protected by the privilege, “a lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege. The threshold we set, in other words, need not be a stringent one.” The Court held that a “judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” Once that showing has been made, the decision to perform a review of the materials is at the judge’s discretion.
Finally, the Court concluded that “the party opposing the privilege may use any nonprivileged evidence in support of its request for in camera review, even if its evidence is not ‘independent’ of the contested communications.” In addition, the Court noted that evidence that is not independent of the contents of allegedly privileged communications may be used not only to secure in camera review, but as part of the evidentiary basis for the ultimate showing that the crime-fraud exception applies.
Despite the Court’s detailed analysis, the lower courts continued to struggle with the question that the Supreme Court avoided in Zolin: what quantum of proof is necessary to pierce the attorney-client privilege itself? The First Circuit Court of Appeals addressed this issue in In re Grand Jury Proceedings in an attempt to clarify the “rubbery” prima facie standard originally announced in Clark. The First Circuit explained:
[I]t is enough to overcome the privilege that there is a reasonable basis to believe that the lawyer’s services were used by the client to foster a crime or fraud.
Precisely because of the initial barrier of the privilege, it is very hard for an adversary unaided to show that the privileged communications were themselves corrupt, so the requirements for access cannot be set too high. And, if the communications were innocent, the initial look may often not damage the client. In all events, the reasonable cause standard is intended to be reasonably demanding; neither speculation nor evidence that shows only a distant likelihood of corruption is enough.
As a reminder of, and expansion upon, the rule first articulated in Clark, the First Circuit noted that “the privilege is not lost solely because the client’s lawyer is corrupt . . . . The crime-fraud exception requires the client’s engagement in criminal or fraudulent activity and the client’s intent with respect to attorney-client communications.” In addition, it is not sufficient to merely establish that the client is guilty of a crime or fraud; he must have used the attorney’s services to foster said crime or fraud.
III. The Crime-Fraud Exception in New Hampshire
New Hampshire Rule of Evidence 502 explains the attorney client privilege. Subpart (d)(1) of that rule states: “There is no privilege under this rule: If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit in the future what the client knew or reasonably should have known to be a crime or fraud.” Although the New Hampshire Supreme Court has not yet addressed this issue, guidance may be found by analogizing to other instances where similar privileges, such as the doctor-patient privilege, have been pierced. The New Hampshire Supreme Court succinctly summarized the requirements for piercing the physician/psychotherapist-patient privilege in In re State as follows:
We have found that the privileges in question are not absolute and must yield when disclosure of the information concerned is considered essential. To establish essential need, the party seeking the privileged records must prove both that the targeted information is unavailable from another source and that there is a compelling justification for its disclosure. Before establishing essential need for the information contained in the privileged records, however, the party seeking to pierce the privilege must first establish a reasonable probability that the records contain information that is material and relevant to the party’s defense or claim. The “reasonably probability” showing also establishes an initial, minimum standard that the defendant has to meet before the trial court undertakes an in camera review and a determination of whether the privilege should be abrogated.
The court in Desclos v. Southern New Hampshire Medical Center employed a three-part test to determine whether a reasonable alternative source of information is available: (1) whether the alternative evidence is admissible at trial; (2) whether the alternative evidence is sufficient to overcome a motion for directed verdict, when applicable; and (3) whether the party seeking to pierce the privilege has made adequate efforts to investigate alternative sources. The court specifically instructed trial judges to make explicit findings and rulings on each of these prongs.
The first part of the test speaks for itself. With respect to the second prong, the court explained that “if the alternative evidence is insufficient to survive a motion for directed verdict, then it is, for practical purposes, unavailable.” The third prong is the most rigorous and it requires the party seeking to pierce the privilege to make an offer of proof demonstrating “substantial, good faith efforts to discover alternative sources of competent evidence.” To amplify this point, the court added that “[c]onclusory statements that alternative sources are non-existent or futile to explore will not be sufficient. Nor is it sufficient to simply argue that the privileged information provides the best source of evidence sought or the least burdensome means to acquire such evidence.” The party need not exhaust all alternative sources of information “that offer little chance of revealing alternative evidence,” however; the trial court may make a factual determination that the party has made adequate investigatory efforts to satisfy the third prong.
While not identical, there is some similarity between this standard and that set forth in Zolin, in that both allow for in camera review upon a relatively low evidentiary showing before requiring a more stringent quantum of proof before the privilege is ultimately pierced. Although it is not clear whether the New Hampshire courts will adopt the Desclos standard or look to the federal law on the subject, there is ample precedent in both areas to guide the practitioner seeking to employ the crime-fraud exception.
Looking to other jurisdictions, the Massachusetts courts have adopted a standard almost identical to that in Zolin for in camera review. Numerous other states have also adopted the standard, citing Zolin favorably. With respect to ultimately piercing the privilege after in camera review, states are divided in similar fashion to the Federal Circuit, adopting variations of probable/reasonable cause, prima facie, or preponderance of the evidence. Both Massachusetts and Maine, for example, have adopted the latter.
The use of the attorney-client privilege to shield fraudulent behavior is unconscionable, and must be combated more strongly than it has been. As a starting point, we encourage practitioners in the position to do so to file motions to compel privileged communications where fraud is suspected. In addition, we encourage the courts to be willing to make preliminary in camera reviews of communications between attorneys and their clients. In doing so, we hope the existence of a reasonable fear of being caught and reported will give counsel pause before allowing themselves to become complicit in the fraudulent or criminal actions of their clients. This behavior can be curbed, but affirmative action is necessary to do so.
 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
 See N.H. R. Ev. 502(d)(1).
 289 U.S. 1 (1933).
 Id. at 15.
 Id. (quoting O’Rourke v. Darbishire,  A.C. 581, 604).
 491 U.S. 554 (1989).
 Id. at 565.
 Id. at 568.
 Id. at 571.
 Id. at 572.
 Id. (internal quotations and citations omitted).
 Id. at 574.
 Id. at n. 12.
 417 F.3d 18 (1st Cir. 2005).
 Id. at 23.
 In re Grand Jury Proceedings, 417 F.3d at 23 (emphasis in original).
 See id.
 N.H. R. Ev. 502(d)(1).
 162 N.H. 64 (2011).
 Id. at 70.
 153 N.H. 607 (2006).
 Id. at 616.
 Id. at 617.
 See In re Grand Jury Investigation, 772 N.E.2d 9, 22 (stating party must make “a threshold evidentiary showing of a factual basis adequate to support a reasonable belief that an in camera review of the evidence may establish that the crime-fraud exception applies”).
 See e.g., Newman v. State, 863 A.2d 321 (Md. 2004); State ex rel. Allstate Ins. Co. v. Madden, 603 S.E.2d 25 (W.Va. 2004); Olson v. Accessory Controls & Equipment Corp., 757 A.2d 14 (Conn. 2000).
 See In re Motion to Quash Bar Counsel Subpoena, 982 A.2d 330 (Me. 2009); In re Grand Jury Investigation, 772 N.E.2d at 22.
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